The power to watch is a power to coerce

The Guardian reports that the National Design Studio — described as an opaque White House office staffed largely by veterans of Elon Musk's so-called department of government efficiency — has installed visitor-tracking software on vital federal websites. The concern raised is surveillance: citizens who consult government portals for benefits, legal information, or civic guidance may be leaving a data trail controlled by an office that answers, so far as the public can tell, only to the executive itself.

I will speak plainly about what I do not know. The engineering of such software, the precise data it collects, and the uses to which it might be put — these are technical matters beyond any disposition I could claim. What I can assess is the constitutional structure the arrangement implies, because that structure is as familiar to me as the parchment it was written on.

The question is always: accountable to whom?

In Federalist No. 51 I argued that the great security against a gradual concentration of power in any single department lies in giving each branch the means and the motive to resist encroachments by the others. An office that is opaque — that is, one whose authority, budget, and chain of command are not disclosed to the legislature or the public — is by design a mechanism for defeating that resistance. Opacity is not efficiency; it is the structural precondition for unchecked power.

The First Amendment protects not only the freedom to speak but, by necessary inference, the freedom to seek information without fear that the act of seeking will be used against you. A citizen who hesitates to consult a government website on immigration, benefits, or political matters because she fears being catalogued is a citizen whose liberty has already been diminished — not by a court order, not by a statute, but by the quiet installation of a piece of software. The chilling of inquiry is the chilling of conscience, and conscience is not the magistrate's business. (I argued as much in the Memorial and Remonstrance, and I see no reason to revise the principle.)

Congress holds the remedy — if it chooses to use it

Article I vests in the legislature the power of the purse and the power of oversight. An office that operates without a confirmed director, without a public charter, and without transparent appropriations is precisely the kind of administrative body the legislature should demand to examine. The Founders did not create standing committees merely to process legislation; they created them to scrutinize executive conduct. If the National Design Studio operates on reprogrammed funds or on informal authority delegated from the White House, Congress has both the right and the duty to compel disclosure — who authorized the software, what data is retained, under what legal authority, and answerable to which officer of the United States government.

I mark this next point as inference, not recollection, because I cannot know the precise organizational structure described in The Guardian's reporting: but an entity staffed by loyalists of a private actor — even one temporarily serving in a governmental capacity — and embedded inside the White House with limited external oversight bears an uncomfortable resemblance to what I warned against when I cautioned that the accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, is the very definition of tyranny. The danger does not require malicious intent; it requires only that the mechanism be uncontrolled.

The structural question, stated plainly

Does the arrangement described strengthen or weaken the constitutional balance? It weakens it. A free republic depends on citizens who can petition, inquire, and inform themselves without fearing that the act of inquiry becomes evidence in the hands of the executive. It depends on a legislature that can see what the executive is doing with the authority and the resources the people have granted. And it depends on transparency sufficient to allow the press — which The Guardian here exemplifies in its proper function — to raise the alarm when neither condition is met. The remedy is not technical. It is structural: full disclosure to Congress, a clear statutory basis for any data-collection activity on public government websites, and meaningful oversight by the branch that holds the purse. Anything less invites the slow erosion that free governments, in my experience, rarely recover from once it takes hold.